On the July 5 edition of MSNBC's Hardball, during a discussion of President Bush's decision to commute former vice presidential chief of staff I. Lewis “Scooter” Libby's 30-month prison sentence, David B. Rivkin Jr., a Justice Department official under George H.W. Bush, claimed that the impeachment of President Bill Clinton by the House of Representatives “is tantamount to what the jury found with regard to Scooter. It's just that the Senate -- which really was playing the same function conceptually as [U.S. District Court] Judge [Reggie B.] Walton -- decided not to punish him.” In fact, the 1998 impeachment of Clinton by the House was not “tantamount” to the federal jury's conviction of Libby; rather, the two impeachment articles passed by the House constituted a compilation of accusations against Clinton. These accusations were then considered by the Senate, which acquitted him on both charges. Contrary to Rivkin's assertion, during 1998 impeachment proceedings, the House was not the equivalent of a jury with the Senate comparable to a judge. Under the U.S. Constitution, it is the function solely of the Senate to decide whether to convict or acquit, a decision made by juries in criminal cases. Host Chris Matthews did not challenge Rivkin's claim.

In claiming that the House's impeachment of Clinton on charges of perjury and obstruction of justice was “tantamount to what the jury found with regard to” Libby, Rivkin falsely analogized the House's action in voting to impeach Clinton to a criminal conviction. In fact, under the United States Constitution, the House “shall have the sole Power of Impeachment” [Art. I, Section 2] and “The Senate shall have the sole Power to try all Impeachments. ... And no Person shall be convicted without the Concurrence of two thirds of the Members present.” [Art. I, Section 3] The Constitution further states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” separating "[i]mpeachment" from "[c]onviction." [Art. II, Section 4]

Additionally, The Federalist Papers states that the Constitution divides impeachment powers “between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging,” referring to the House and Senate, respectively. From Federalist No. 66, written by Alexander Hamilton, in which he defends the proposed Senate's role as the “court for the trial of impeachments”:

[T]he powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.

Therefore, the two articles of impeachment that the House passed against Clinton on December 19, 1998, -- on charges of perjury and obstruction of justice -- represented a formal accusation, not a conviction. Upon presentation of these articles of impeachment, the Senate tried Clinton on the charges and faced the decision of acquittal or conviction; it acquitted him of both on February 12, 1999.

By contrast, on October 28, 2005, a federal grand jury indicted Libby on five counts of perjury, obstruction of justice, and making false statements, and on March 6, 2007, a federal jury convicted him on four of those counts, acquitting him on one of the false statement charges. Walton subsequently sentenced Libby to 30 months in jail, fined him $250,000, and gave him two years' probation.

Later in the show, Rivkin also claimed that former CIA operative Valerie Plame “was not a covert operative” when her CIA identity was disclosed to reporters in 2003. In response, Citizens for Responsibility and Ethics in Washington executive director Melanie Sloan said, “The CIA says that she was,” to which Rivkin replied, “The CIA has never said ...” before being interrupted by Matthews. As Media Matters for America has repeatedly noted, an "unclassified summary" of Plame's CIA employment released on May 29 by special counsel Patrick J. Fitzgerald asserted that “the CIA ... now publicly acknowledges that Ms. Wilson was a CIA employee from January 1 2002 forward and the previously classified fact that she was a covert CIA employee during that period.” Matthews again did not challenge Rivkin's claim. From the summary:

At the time of the initial unauthorized disclosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.

[...]

In October 2005, the CIA determined, in its discretion, that the public interest in allowing the criminal prosecution to proceed outweighed the damage to national security that might reasonably be expected from the official disclosure of Ms. Wilson's employment and cover status. Accordingly, the CIA lifted and rolled back Ms. Wilson's cover effective 1 January 2002 and declassified the fact of her CIA employment and cover status from that date forward.

This determination means that the CIA declassified and now publicly acknowledges the previously classified fact that Ms. Wilson was a CIA employee from 1 January 2002 forward and the previously classified fact that she was a covert CIA employee during this period.

From the July 5 edition of MSNBC's Hardball with Chris Matthews:

SLOAN: I think that this is not about Bill Clinton. This is about--

MATTHEWS: No, I'm asking you a direct question.

SLOAN -- Scooter Libby.

MATTHEWS: You have to answer it.

SLOAN: No, Chris. What we're actually talking about now --

MATTHEWS: No, I'm asking about Bill Clinton's impeachment.

SLOAN: -- is what Scooter Libby is doing.

MATTHEWS: Did you support the impeachment of Bill Clinton for perjury and obstruction of justice?

SLOAN: I didn't take a position on the impeachment of Bill Clinton one way or the other. What I do take a position on is that this administration has said that these perjury and obstruction of justice are very serious crimes, and yet now, they're not taking them seriously.

MATTHEWS: So you've never said anything to anyone at any circumstances about the Bill Clinton impeachment exercise at all. You've never, ever spoken about that in your life?

SLOAN: Certainly, my organization --

MATTHEWS: No, you.

SLOAN: --Citizens for Responsibility and Ethics in Washington --

MATTHEWS: No, you.

SLOAN: -- has not taken a position.

MATTHEWS: You, you personally. Have you ever said anything about Bill Clinton's impeachment to anyone?

SLOAN: I'm sure that I must have said something about Bill Clinton's impeachment to someone, yes.

MATTHEWS: And you didn't take a position on whether he should have been properly impeached for perjury and obstruction of justice.

SLOAN: I take the position that Bill Clinton had -- was found to have -- found to have perjured himself by the House, but the Senate declined to convict him, and that's what happened in that case. Here, on the other hand, we have a jury of 12 citizens --

MATTHEWS: Right.

SLOAN: -- who convicted Mr. Libby.

MATTHEWS: And 50 Republicans voted to kick the president out of office for perjury and obstruction of justice, and you think that was the correct vote on their part?

SLOAN: I think it's a far different matter when we start talking about impeaching a president of United States versus the concept of sending a man who's guilty of those crimes to jail for a mere 30 months.

MATTHEWS: So, you think that the 30 months was appropriate?

SLOAN: I think that Judge Walton, who's a Republican Bush appointee, found that that was an appropriate sentence. The sentencing guideline range for that sentence -- for perjury and obstruction of justice is 30 to 37 months, so it was on the low end of the sentencing guidelines, and in fact, the Justice Department has long taken the position that any sentence given in the range of the sentencing guidelines --

MATTHEWS: Right.

SLOAN: --is per se reasonable.

MATTHEWS: Well, let me try Mr. Rivkin and try to find consistency in your judgment of these two cases. Mr. Rivkin, do you think the president of the United States, Bill Clinton, should have been impeached, as he was, for perjury and obstruction of justice?

RIVKIN: No, as a matter of fact, I do not. I want to clarify something because I appreciate your question. The impeachment actually was complete in the House, if you look at the Constitution.

MATTHEWS: Sure.

RIVKIN: So, in effect, what happened to Mr. Clinton and is tantamount to what the jury found with regard to Scooter. It's just that the Senate -- which really was playing the same function conceptually as Judge Walton -- decided not to punish him.

I personally think that the kind of punishment in the court of history that President Clinton received was sufficient. I do believe that this perjury and obstruction of justice are serious crimes. The reason I personally support the commutation and even a pardon here is I do not believe that this was a fair and just prosecution. I think it was politicized. I think the mistake was not made by the jury. I think the mistake was made by the vindictive and out-of-control prosecutor who aligned the facts in such a way that the jury had no choice but to convict Mr. Libby.

MATTHEWS: Right. What do you think was his motive, since you've made the accusation?

[...]

SLOAN: Going after [former Ambassador] Joe Wilson would have been fair. That would have been a totally reasonable thing to do, but to endanger national security by outing a covert CIA operative for political purposes --

RIVKIN: Nobody -- she was not a covert -- she was not a covert operative.

SLOAN: The CIA says that she was.

RIVKIN: The CIA has never said --

MATTHEWS: Well, we are going to have to find out whether they knew at the time that she was covert.